This is not the first time I have written about this case, but with any luck it won’t be the last because hopefully the Supreme Court will agree to review it and reverse the Federal Circuit’s unfortunate (and statutorily-questionable) ruling finding that software APIs could be subject to copyright.

Unfortunately the odds of the Supreme Court even taking up the case this may have dropped this week following the submission of a brief by the Solicitor General to the Court urging it not to (the brief is embedded at the bottom of this Techdirt post). In this brief the Solicitor General, acting on behalf of the Obama Administration, stated its belief that the Federal Circuit had been correct in the first place and that there was no need for the Supreme Court to revisit its analysis.

This brief is itself unfortunate, in part because its analysis is fairly incomplete (ignoring relevant precedent) and under-theorized. There’s always tension in copyright law between the idea-expression dichotomy. In other words, while expression can be copyrighted, ideas cannot be (for good reason), and it can be difficult to figure out which side of the copyrightable line certain types of works, like software (or their APIs), fall on. Unfortunately the government’s brief sheds little light on how these sorts of difficult questions should be resolved, or why.

It’s also unfortunate that the view in support of the Federal Circuit’s ruling is the government’s view. One would hope that the US government would support the statutory interpretation that most promotes innovation. Unfortunately that is not the view of the Federal Circuit, which in fact tends to run counter to an innovation-promoting policy goal. To further explain why this is so I am cross-posting the article on the subject I wrote last year for Al Jazeera explaining why the Federal Circuit’s interpretation of copyright law with regard to APIs is so destructive to future innovation.Continue reading »